Nishitani & Nishitani

Case [2025] FedCFamC1F 268

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Nishitani & Nishitani [2025] FedCFamC1F 268

File number: SYC 5453 of 2024
Judgment of: SCHONELL J
Date of judgment: 29 April 2025
Catchwords:

FAMILY LAW – CONTRAVENTION – PENALTY – Where contravention conceded – Consideration of penalty – Where the wife sought the imposition of a sentence of imprisonment with various suspensions – Where the husband contends that no sanction should be applied, but in the alternative that the maximum fine and a further payment of 50,000 to the wife would be appropriate – Where both parties agree that the maximum fine of 60 penalty units amounts to $19,800 – Orders made for the husband to pay $19,800 as a fine and a further $50,000 to the wife.

FAMILY LAW – COSTS – Where the wife sought her costs in relation to the application in a proceeding on an indemnity basis – Where the husband conceded an order for indemnity costs for the first appearance but opposed an order for indemnity costs on the second appearance – Consideration of factors under s 117 of the Family Law Act 1975 (Cth) – Where the Court is satisfied there are exceptional circumstances warranting indemnity costs given finding that there was no reasonable excuse for the contravention of an order – Costs ordered on an indemnity basis.

Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt XIIIA ss 112AA, 112AB, 112AC, 112AD, 112AE, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd 161 CLR 98; [1986] HCA 46

Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Fitzgerald v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Galvis & Galvis [2024] FedCFamC1A 123

Kohan and Kohan (1993) FLC 92-340

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Division: Division 1 First Instance
Number of paragraphs: 73
Date of hearing: 9 April 2025 and 16 April 2025  
Place: Sydney
Counsel for the Applicant: Ms Petrie
Solicitor for the Applicant: Fox & Staniland
Counsel for the Respondent: Mr Stapleton
Solicitor for the Respondent: Keypoint Law

ORDERS

SYC 5453 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS NISHITANI

Applicant
AND:

MR NISHITANI

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

25 APRIL 2025

UPON NOTING THAT:

A.The husband has contravened without reasonable excuse Order 6 of the orders made by Senior Judicial Registrar McNamara on 19 November 2024.

THE COURT ORDERS THAT:

1.The husband pay to the Sydney Registry Manager of the Federal Circuit and Family Court of Australia a fine of $19,800 within 14 days.

2.The husband pursuant to s 112AD(4)…

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AGLC
Nishitani & Nishitani [2025] FedCFamC1F 268
Case
[2025] FedCFamC1F 268
Decision Date

CaseChat Overview and Summary

In the case of Nishitani & Nishitani, the Federal Circuit and Family Court of Australia was tasked with addressing a contravention of court orders in the context of a family law dispute. The husband, in breach of an order requiring the return of a motor vehicle to the wife, sold the vehicle without disclosing this action to the court. This sale occurred despite the wife's application for interim relief which included the return of the vehicle. The husband’s actions were found to be a deliberate contravention without reasonable excuse, leading to the wife seeking appropriate sanctions and compensation for the breach.

The court was required to determine the appropriate penalty for the husband's contravention and to decide on the wife's application for her costs on an indemnity basis. The husband argued against any sanction being applied, proposing instead a fine and additional payment to the wife. The wife sought imprisonment with suspensions, while also claiming her costs for the contravention application on an indemnity basis. The court needed to weigh the husband’s arguments against the need to uphold the integrity of court orders and to consider the financial implications of the contravention on the wife.

The court found that the husband’s actions warranted a penalty, ordering him to pay a fine of $19,800 and an additional $50,000 to the wife. The court also granted the wife's application for her costs on an indemnity basis, considering the exceptional circumstances where the husband had no reasonable excuse for the contravention. The decision reflected the court's commitment to enforcing compliance with its orders and providing appropriate redress to the aggrieved party.

In summary, the court ordered the husband to pay a fine of $19,800, an additional $50,000 to the wife, and her costs amounting to $36,100. The orders were made to ensure compliance with the court’s directives and to compensate the wife for the contravention.

Orders

Orders of the court

SYC 5453 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS NISHITANI

Applicant

AND:

MR NISHITANI

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

25 APRIL 2025

UPON NOTING THAT:

A. The husband has contravened without reasonable excuse Order 6 of the orders made by Senior Judicial Registrar McNamara on 19 November 2024.

THE COURT ORDERS THAT:

1. The husband pay to the Sydney Registry Manager of the Federal Circuit and Family Court of Australia a fine of $19,800 within 14 days.

2. The husband pursuant to s 112AD(4) of the Family Law Act 1975 (Cth) pay to the wife the sum of $50,000 within 14 days.

3. The husband pay to the wife her costs of the Application – Contravention fixed in the sum $36,100 within 14 days.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Orders were made for the husband to file any further affidavit by 15 April 2025 and for the matter to adjourn to 16 April 2025. At the resumed hearing the parties made further submissions and judgment was reserved.BACKGROUND The husband contends that the parties commenced cohabitation in 2011, were married 2014, and separated on a final basis in August 2022. The wife contends that the parties finally separated under the one roof in November 2022. There are two children of the parties’ marriage aged five and three years old. It is not in issue that during the course of the parties’ relationship the wife had the use of Motor Vehicle 1 owned by the husband (“the car”). In or about March 2024 the parties were engaged in an argument during which the husband took the keys and removed the car such that the wife did not have access to it. On 16 July 2024, the wife commenced proceedings seeking interim and final orders. Part of the interim relief the wife sought was the return to her of the car. As then articulated, the wife also sought transfer of the car on a final basis. The interim hearing took place before a Senior Registrar on 19 November 2024. At the interim hearing, the court was informed by the husband’s counsel that the husband was taking steps to sell the car. The senior registrar made, amongst other orders, Order 6 as referred to above. A notation to the orders is to the following effect:B.The only outstanding issues requiring interim determination are the children’s time with father, the sale of the [Suburb C] property, and the sale of [Motor Vehicle 1] and the parties have been advised that the matter is only listed in relation to those issues on 6 February 2025. Despite advising the Court that the husband had taken steps to sell the car neither the husband nor his legal advisors informed the Court (in the full knowledge of the order and the Notation) that the husband would continue to take steps to sell the car. By the terms of Order 6, the car was to be delivered to the wife by 26 November 2024. It is not in issue that the husband did not deliver the car to the wife in accordance with the order. On the last day by which it was to be delivered to the wife, the husband sold it to a third party and paid the proceeds to his father to whom it is alleged he owes money borrowed to buy the car some three years or so earlier. On that same day, his solicitor sent a letter to the wife’s solicitor in the following terms: We note that at the interim hearing on 19 November 2024 we informed the Court and Counsel on behalf of our client that [Motor Vehicle 1] was for sale.In the above circumstances, the Court did not make any Order restraining our client from selling the said [Motor Vehicle 1].We are instructed that [Motor Vehicle 1] has been recently sold and the proceeds of sale paid to our client's father, [Mr E] in partial repayment of the outstanding loan.We are further instructed that our client has obtained his father's agreement to advance the sum of $50,000 by way of loan to our client for the purpose of providing the funds to your client to purchase a motor vehicle in her name and for her exclusive use with the children. The said funds will be advanced to your client by way of partial property settlement.Please obtain your client's urgent instructions and provide us with her nominated bank details, including name of account, bank, BSB and account number, by reply email as soon as possible.We will provide you with documents pertaining to the sale of [Motor Vehicle 1] upon our receipt of same by way of further and updating financial disclosure.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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